STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JAN A JENKINS, Employee

KFC RESTAURANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06000196MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

As of February 13, 2005 (week 8) through May 18, 2005, the employee had no restriction regarding work, and was able to work and available for suitable work without restriction. On May 19, 2005 (week 21), the employee was arrested and incarcerated in an Illinois county jail for 28 days, until June 16, 2005, when he was transferred to an Illinois state prison, where he remained until released on November 9, 2005 (week 46). Throughout his incarceration he had no work-release privileges.

Department records show that benefits were claimed and paid beginning in week 8 through week 23 of 2005, ending June 4, 2005. Thereafter, no weekly claim was made or paid until the claim was reactivated for the week beginning November 20, 2005 (week 48).

Wisconsin Statute § 108.04(2)(a)1. provides, in part, as follows:

GENERAL QUALIFYING REQUIREMENTS. (a) Except as provided in par. (b) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week for which he or she earns no wages only if:

1. The individual is able to work and available for work during that week; . . .

*                     *                     *

The first issue for decision is whether the employee was able to work and available for work in his labor market in weeks 8 through 46 of 2005.

In weeks 8 through 20 of 2005, the employee had no work restrictions and was able to work and available for suitable full-time work. In weeks 21 through 46 he was unavailable for work because he was incarcerated without work-release privileges.

The commission therefore finds that in weeks 8 through 20 of 2005, the employee was able to work and available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and chapter DWD 128 of the Wisconsin Administrative Code.

The commission further finds that in weeks 21 through 46 of 2005, the employee was unable to work and unavailable for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) of the statutes, and chapter DWD 128 of the Wisconsin Administrative Code.

A second issue exists as to whether the employee was erroneously paid unemployment benefits that must be repaid to the department.

Department records show that it erroneously paid benefits totaling $504 for weeks 21 through 23 of 2005.

The commission therefore finds that benefits were paid in the amount of $504 for which the employee was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

As reflected in the appeal tribunal decision, the employee denies having filed claims for the weeks in question, and asserts that the claims were filed without his permission or knowledge, and that the checks were cashed by a third party.

The statute contains an "imposter provision," which provides:

If any person makes a false statement or representation in order to obtain benefits in the name of another person, the benefits received by that person constitute a benefit overpayment. Such person may, by a determination or decision issued under s. 108.095, be required to repay the amount of the benefits obtained and be assessed an administrative assessment in an additional amount equal to not more than 50% of the amount of benefits obtained.

Wis. Stat. § 108.04(11)(cm).

Section § 108.095 of the statutes includes the following procedure for handling "imposter" cases:

False statements or representations to obtain benefits payable to other persons. (1) The procedures under this section apply to any issue arising under this chapter concerning any alleged false statement or representation of a person to obtain benefits that are payable to another person, and are in addition to any determination, decision or other procedure provided under s. 108.09. The procedures under this section apply whether or not a penalty for an offense is provided under s. 108.24.

(2) The department shall investigate whether any person has obtained benefits that were payable to another person by means of any false statement or representation, and may issue an initial determination concerning its findings. The department shall mail a copy of the determination to the last-known address of each party affected thereby. Unless designated by a determination under this section, an employing unit is not a party to the determination. The department may set aside or amend the determination at any time prior to a hearing concerning the determination under sub. (5) on the basis of subsequent information or to correct a mistake, including an error of law.

The procedures delineated above have not been followed in this case, and no determination has been made with respect to the application of the "imposter provision." Pursuant to Wis. Stat. § 108.04(11)(cm), if it is found that a third party made a false statement in order to obtain benefits in the employee's name, that person may be responsible for repayment of the overpayment. The matter must therefore be remanded for an investigation and determination into the questions of whether a person has obtained benefits that were payable to the employee by means of a false statement or representation, and whether the employee or some other person is obligated for repayment of the overpaid benefits.

DECISION

The decision of the administrative law judge is affirmed in part. Accordingly, the employee is eligible for benefits for weeks 8 through 20 of 2005, if otherwise qualified. He is ineligible for benefits for weeks 21 through 46 of 2005.

The portion of the decision addressing the employee's obligation to repay the overpayment is set aside, and the matter is remanded for an investigation and determination into the question of whether a person has obtained benefits that were payable to the employee by means of a false statement or representation and,
accordingly, whether the employee or some other person is obligated for repayment of the overpaid benefits.

Dated and mailed April 13, 2006
jenkija . urr : 164 : 8  BR 335

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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